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On 19 March 2018, the Singapore Parliament approved a suite of new criminal justice reforms by way of amendments to the Criminal Procedure Code (“CPC“) and the Evidence Act (“EA“). The CPC provides the framework for criminal investigations and the procedure for criminal hearings, and the EA provides the framework for all matters concerning evidence in court. The Ministry of Law (“MinLaw“) had issued a public consultation in respect of the amendments in July 2017, with further proposed amendments added in January 2018. The changes are expected to come into force before the end of 2018. We highlight the amendments which will impact on the conduct of criminal investigations.

Background to the amendments

The CPC was repealed and re-enacted in 2010. Significant amendments to the Evidence Act were last made in 2012.

There were about 50 proposed changes documented in the annex to the public consultation paper on MinLaw’s website.

The aim of the amendments, which relates to the powers of investigators and other powers of the court, seek to enhance the fairness of existing procedures and ensure the accuracy and equity of outcomes in the criminal justice system.

Changes to the CPC which impact upon the conduct of criminal investigations

Investigative agencies’ computer-related powers of investigation

Under the previous regime, investigative agencies have the power to access, inspect and search data on computers. The amendments seek to clarify these powers. Following the amendments, investigators will have the power to:

order the production of evidence stored on computers (including computers stored outside of Singapore, such as servers of cloud service providers);

order a person to provide login credentials to a computer or a cloud services account, or;

prevent a person from accessing a computer or account by changing its password or by other means.

Safeguards and limitations will be in place in respect of computers outside Singapore. For example, investigators can only exercise their powers over such computers when access has been granted to them by a person legally authorised to do so, and when they do exercise their powers, they must inform the government of the jurisdiction in which the computer is located within a reasonable time, unless the Minister certifies that it will not be in the public interest to do so.

Video recording of interviews

Previously, the CPC required all statements to be in writing. Changes have now been made to allow for video recording of statements. This will be implemented in phases, starting with interviews of suspects in specified rape offences. The video recording of such interviews is mandatory. The next phase will then be rolled out to video recording of victims’ statements, and possibly to vulnerable suspects or suspects of other offences.

Evidence in the form of video recordings will enable the court to adjudicate on the weight of the evidence, as these recordings objectively reflect the flow of the interview and the demeanour of the interviewer and the interviewees at the material time. Video recordings can also minimise trauma faced by vulnerable victims of crime, who may otherwise have to recount their ordeal several times.

Safeguards will be put in place to prevent unauthorised use of the video recordings and guidelines will be introduced to ensure that video recordings are not used inappropriately. These include prohibiting defence counsel from taking copies of the recordings, to prevent them from being leaked or misplaced.

Protection of legal professional privilege (“LPP“) during investigations

The amendments clarify that when investigators exercise powers of search and seizure or issue orders for production under any written law, their powers are subject to LPP unless the statute provides otherwise.

When material over which LPP is asserted is seized by investigators, such material shall be sealed and a list of materials will be created, in the presence of the person claiming LPP, the lawyer, or the lawyer’s representative. The seizing officers must not break the seal and shall convey the material to a place of safe custody. Court procedures are also introduced to deal with disputes over LPP.

Introduction of deferred prosecution agreements (“DPA“)

DPAs were part of another six amendments which were added to the original 50 proposed changes after discussions with the Law Society. Under such agreements, prosecutors agree not to prosecute a corporate entity if it complies with specific conditions. Corporations would avoid criminal conviction if they meet the conditions of the agreement, but could pay much higher fines than the penalties provided for under the relevant law for the offence in question.

DPAs are fully voluntary and will only apply to corporate offenders represented by counsel. The terms of the DPAs have to be approved by the High Court, though the court does not have a duty to give reasons for the approval of DPAs. Unlike a court judgment, a DPA is not meant to set a precedent for future DPAs and has no binding effect.

Comments

The amendments clarify the powers of investigative and law enforcement agencies in their conduct of investigations and interviews, and assist in facilitating the investigative process. For individuals and multinational corporations which may be the subject of these investigative and enforcement efforts, these amendments are also instructive as to the level of cooperation that they will be required to give to the officers of these agencies. Corporations should consider reviewing their compliance and investigations policies before the amendments come into effect.

The clarification as to the scope and applicability of LPP in investigations is also timely, as the prior position under Singapore law was unclear and different approaches have been taken in other common law jurisdictions. Our client alerts on the cases relating to the issue of LPP in investigations are accessible here, here and here.

The DPA regimes in the United States and the United Kingdom have been effective in encouraging voluntary cooperation from corporations in investigations, and in motivating these corporations to improve and enhance their compliance programs. A DPA regime in Singapore, if effectively implemented, will potentially have the same effect and this will be a positive development towards the city’s overall efforts at combating corporate offences and raising standards of corporate compliance.

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